153 Minn. 521 | Minn. | 1922
Lead Opinion
Relators in this proceeding paid a debt, for the payment of which they with other persons were jointly liable. They then brought
“I am therefore of the opinion that the court erred in not granting a trial by jury and a new trial must be had. It is therefore ordered, that a new trial be and the same is hereby ordered and granted and that said cause be placed on the calendar of the September, 1922, general term of said court for trial by jury.
“Dated July 26th, 1922.” •
Whereupon relators applied for and obtained from this court an alternative writ of mandamus commanding the trial court to proceed and decide the issues in the action, so tried and submitted to him, or show cause to the contrary. On the return of the writ counsel for respondent moved to quash the proceedings on the ground that the writ was improvidently granted, and that the facts stated therein do not entitle relators to the relief demanded.
The cause having been tried and submitted for decision upon the merits of the controversy, the court was under legal duty to decide the same, and mandamus may issue to require a performance of the duty. The writ will not issue to compel a particular decision, but .only to require a determination of the case one way or the other. 18 R. C. L. 124; State v. State Med. Ex. Board, 32 Minn.
In the case at bar after trial and submission of the cause, the court concluded that error had been committed in the refusal of a jury, and ifor that error granted a new trial on its own motion, and without a decision upon the merits of the case. If that order was valid as within the authority of the court, it must stand, for it cannot be reviewed in this manner; if a valid order it was appealable and that and not mandamus is the proper remedy. But the order was without authority and ineffective. Farris v. Koplau, 113 Minn. 397, 129 N. W. 770, and Stebbins v. Martin, 121 Minn. 154, 140 N. W. 1029. The power of a trial court to grant a new trial of an action on its own motion was sustained in Bank of Willmar v. Lawler, 78 Minn. 135, 80 N. W. 868. But that case involved the sufficiency of the evidence to support the verdict and the rule there applied was expressly limited to flagrant cases of the character, and held inapplicable to errors in law occurring on the trial, in the Koplau and Stebbins cases above cited.
The practice of completing the trial, with a verdict of the jury or decision of the court, as the case may be, with the right and duty of the court subsequently to consider alleged errors occurring on the trial only when complained of by the defeated party, has been too long established and is too firmly rooted in our system of judicial procedure to be set aside or displaced by a new practice
So, while the court may in exceptional cases involving questions of evidence grant a new trial of its own motion, it may not do so for errors in law. From which it follows that the order here involved was without authority and of no force or effect, leaving the cause pending and before the court for determination.
In that view we do not consider the question, discussed to some extent in the briefs, namely, whether an action for contribution is one at law or in equity. Mandamus is not available as a remedy in review.
Let the writ of mandamus issue as prayed, commanding and requiring respondent to proceed and determine the cause upon the record submitted to him, the same as though the order granting a new trial had not been made. No statutory costs will be allowed.
Dissenting Opinion
(dissenting.)
I dissent: The order of the trial court, while in form the granting of a new trial, is nothing more or less than an order directing a trial by jury on the ground that the court had no power to try the case in any other manner. The opinion holds that the court
The mandamus to the trial court is a direction that he is on a one way road. If he is on the wrong road, the traffic rules forbid him to turn around or back up. He must be commanded to go to the end of the road, there to find a command to turn back and retrace his steps to the point of beginning. With this practice I do not agree.